I've been called to immigration for a "deportation review" after a suspended sentence — what happens at that interview, can they detain me, and what are my rights?

The notice is the start of a formal procedure, not a formality and not a decision already made. An immigration investigation into grounds for deportation is an interview at which an officer examines whether a ground under the Immigration Act exists — a suspended sentence for a violent offense is such a ground — and, if it does, prepares the case for a decision by the head of the office, who chooses between deportation, a departure order, or no measure. Detention at the interview is possible under the Act, is not the norm for a resident with a fixed address, employer and lawful status, and is itself challengeable. You can bring counsel, you can submit written materials, and if an order is issued, the deadlines to contest it are short and specific.

What this is under Korean law

The Immigration Act (출입국관리법, chulipguk gwalli-beop) sets out grounds for deportation in Article 46, including conviction of offenses with a certain sentence and conduct harmful to public order; a suspended prison sentence falls within what is examined. Article 47 and following govern the investigation: an immigration investigator may summon and question a foreign national suspected of falling under Article 46, and prepares a record. The head of the immigration office then decides under Article 58 whether to issue a deportation order (강제퇴거명령, gangje toego myeongnyeong), a departure order (출국명령, chulguk myeongnyeong) under Article 68, or neither.

The choice is discretionary and is exercised on the offense, the sentence, your prior record, the length and lawfulness of your residence, your employment and family ties, and your conduct since. Four years of lawful residence, a single incident, a settlement and an accepted judgment, a supportive employer and a partner in Korea are the facts the discretion is designed to weigh.

Detention

Article 51 permits the immigration office to detain (보호, boho) a foreign national under investigation where there are reasonable grounds to suspect a deportation ground and a risk of flight; detention is in an immigration facility, initially for a period the Act limits and extendable with approval. A resident who attends voluntarily, with counsel, with a lease, an employment contract and a passport, presents little flight risk, and detention at the interview is uncommon in that profile. If it occurs, an objection to the detention (보호에 대한 이의신청) lies to the Minister of Justice, a court can review its lawfulness, and temporary release (보호 일시해제) can be applied for on a deposit. Those are rights to know before the interview, not after.

The interview

You may be accompanied by counsel and are entitled to an interpreter. You will be asked about the offense, the judgment, your residence history and your circumstances; the record you sign is the basis of the decision. Prepare it with your lawyer: the account of the incident should match the criminal judgment, acknowledge the harm, and state what has happened since. Bring: the judgment and the settlement; the employer's letter describing your role and support; your lease; evidence of your relationship; tax and insurance records; certificates of any program or counseling completed; and a written statement from counsel addressing the Article 46 ground and the factors favoring no measure or, at most, a departure order.

If an order is issued

A deportation order may be objected to before the Minister of Justice within seven days of notification under Article 60; the objection suspends nothing by itself but is a required step in some routes. Both a deportation order and a departure order are administrative dispositions challengeable by administrative appeal or by an action for revocation in the administrative court within ninety days, with an application to suspend execution (집행정지, jipaeng jeongji) so that you are not removed while the case is heard. A departure order, if that is the measure, has a departure date to comply with unless a suspension is in place; the ban length is written on it.

MEGA X's involvement here arises from the criminal case; the administrative litigation is part of that matter, and we coordinate with an immigration specialist on the visa side.

What to do now, and what not to do

Do not attend without counsel. Do not miss the date. Do not leave Korea before the interview. Assemble the file this week; draft the written statement; confirm the interpreter. If detention occurs, counsel files the objection and the temporary-release application the same day.

From a former police investigator's perspective

Immigration investigators, like police investigators, work from a file and decide what to recommend on what is in it. A foreign resident who arrives with a folder that tells a four-year story, a lawyer, and an account that matches the judgment gives the investigator the basis for a recommendation short of removal. One who arrives alone, answers questions from memory and hopes for the "formality" version is asking the officer to build the case for him.

Send us the notice and the judgment and we can prepare the written statement and the file before your date — by text consultation or at +82-2-522-3959.

— Hyeonghwan Chon, Managing Partner, MEGA X Law Firm Korea